The Inaugural Ron McCallum Debate: Background Briefing Note Theme: Justice at Work – Have we achieved it? Can the system deliver it? Prepared by the Australian Institute of Employment Rights* June 2011 For The Inaugural Ron McCallum Debate 22 June 2011 Sydney, Australia Australian Institute of Employment Rights Inc. PO Box 237, Seddon West, Victoria, 3011 Tel: +613 9647 9102 Fax: +613 9647 9199 Email: [email protected] www.aierights.com.au 1 © Australian Institute of Employment Rights Inc. 2010. This work is subject to copyright. Apart from any use expressly authorised, no part may be reproduced, copied, published, adapted or used in any manner otherwise not permitted under the Copyright Act 1968(Cth) without the permission of the Australian Institute of Employment Rights Overview This briefing note was prepared to inform the discussion at the Australian Institute of Employment Right’s (AIER) Inaugural Ron McCallum Debate 22 June 2011. It represents a summary of the internal discussions held within AIER regarding the theme Justice at Work and the various sub-themes that were identified as falling under that heading. Post the debate this briefing note has been publicly released because it is relevant to a continuing dialogue about what justice at work looks like and what steps need to be taken in order to realise the goal of building just workplaces. AIER will continue to support this dialogue over coming months. The Australian Institute of Employment Rights The Australian Institute of Employment Rights (‘AIER’) is an independent, not-for-profit organisation that works in the public interest to promote the recognition and implementation of the rights of employers and workers in a cooperative industrial relations framework.AIER works in a variety of ways. A respected think tank , it is a leader in the development of informed, contemporary and balanced ideas in the area of workplace rights. It is place of research , working with a team of leading academics, legal experts and industrial relations practitioners to undertake substantial research and analysis that aims to offer new ideas and models for decent and efficient workplaces. AIER is an influential and sensible voice in the area of workplace legislation , contributing significantly to the development and improvement of Australian policy and towards legislative reform. As a trainer, educator and moderator , AIER works on-the-ground with organisations, workers and their representatives to create more positive and efficient workplace models and environments. AIER collaborates with like-minded organisations to develop and implement programs that educate and empower. It is also a resource for community organisations, educational institutions, the media and the general public. AIER is an advocate and agitator, championing the fundamental rights of employers, workers and the public interest, and arguing for the importance of cultural change in workplaces to ensure decent and fair conditions for all. The Australian Charter of Employment Rights The Australian Charter of Employment Rights (‘the Charter’) lies at the heart of AIER’s work and philosophy. The Charter defines and articulates the pre-eminent rights of employers and workers by identifying the universally accepted fundamental principles on which any legislative system of industrial relations should be based. It has become a blueprint for assessing government policy, for legislative reform, for company practice and for education about workplace rights. The Charter is based upon three sources of rights: rights enshrined in international instruments that Australia is a party to; egalitarian values embedded in Australia’s constitutional and institutional history of industrial/employment law and practice; and common law rights appropriate to a modern employment relationship. Australian Institute of Employment Rights Inc. PO Box 237, Seddon West, Victoria, 3011 Tel: +613 9647 9102 Fax: +613 9647 9199 Email: [email protected] www.aierights.com.au 2 © Australian Institute of Employment Rights Inc. 2010. This work is subject to copyright. Apart from any use expressly authorised, no part may be reproduced, copied, published, adapted or used in any manner otherwise not permitted under the Copyright Act 1968(Cth) without the permission of the Australian Institute of Employment Rights The Australian Standard of Employment Rights An explanation of how the Charter applies in practice can be found in the Australian Standard of Employment Rights (‘ the Standard’ ). It provides a tool for Australian businesses to assess their compliance with the Charter. The Inaugural Ron McCallum Debate Along with Bob Hawke, Ron McCallum is a Patron of AIER. It was fitting that in the year that Ron McCallum was named Senior Australian of the Year, and in order to recognise his election to the Chair of the Monitoring Committee for the United Nations Convention on the Rights of Persons with Disabilities, AIER celebrated his work. Given the event is in honour and recognition of Ron McCallum and his work, the theme Justice at Work became an obvious choice. In preparation for this event the AIER subcommittee, charged with the responsibility of organising the event, explored the sub-themes that fall from the topic Justice at Work and developed the following questions to inform the debate discussion: 1. Does the federal system promote access to justice for employers and workers pursuing their workplace rights? Did the system ever promote justice? What does justice look like? Where is the balance between the economic interests of employers and the rights of workers and their representatives? 2. What has been the impact of the loss of the system of compulsory conciliation and arbitration and the reliance on corporations power? 3. Does it (the legislative system) comply with international labour law and human rights standards? If not how should it be changed? How are we achieving the ILO’s agenda of Decent Work within Australia? How are employers responding to the growing international ‘moral’ pressure to become good corporate citizens in relation to labour rights as human rights? Are Australian employers feeling this pressure? 4. What is the system doing to promote a cultural shift towards cooperation, partnership and good faith relationships? Is there anything more that can be done to the system that would assist here? 5. Does the system provide enough opportunity for the economically and socially disadvantaged? Is there an adequate safety net for the low paid (are the minimum standards adequate)? Will minimum standards be maintained over time? 6. Does it (the system) provide enough protection for the insecure and impermanent workforce? 7. Does it (the system) provide equal opportunity for women? 8. Does it (the system) provide an adequate balance between the legitimate rights of employers to control their workplaces and the privacy rights of individual workers? What suggested changes could be made? Australian Institute of Employment Rights Inc. PO Box 237, Seddon West, Victoria, 3011 Tel: +613 9647 9102 Fax: +613 9647 9199 Email: [email protected] www.aierights.com.au 3 © Australian Institute of Employment Rights Inc. 2010. This work is subject to copyright. Apart from any use expressly authorised, no part may be reproduced, copied, published, adapted or used in any manner otherwise not permitted under the Copyright Act 1968(Cth) without the permission of the Australian Institute of Employment Rights The following material represents a summary of the matters that AIER explored when designing the content of the event and to assist those who would be involved in guiding the discussion at the event. SUB-THEMES FOR EXPLORATION Sub-theme 1: The System and Justice 1.1 What does justice look like? The Australian Charter of Employment Rights: The Charter has been built upon the guarantee of industrial fairness and reasonableness, an egalitarian principle that former High Court Judge Michael Kirby and AIER regard as having profoundly influenced the nature and aspirations of Australian society. The concept of ‘industrial citizenship’: Ron McCallum has examined the writings on industrial citizenship to determine the appropriate rights and obligations that labour law should bestow on Australian citizens at work - ie Australia’s ‘industrial citizens’. He argues that labour law changes which do not meet the standards of justice and fairness will be found wanting by Australian industrial citizens and their families. McCallum notes: “… all writers on industrial citizenship argue that workers should receive fair wages and reasonable terms and conditions of employment, including protective legislation in the areas of unfair termination, privacy and occupational health and safety. Another recurring theme is the notion that industrial citizens should be given an input in to the processes of employer decision-making. It is also obvious that a re-working of industrial citizenship is essential to take account of the needs and aspirations of immigrant workers, of part-time and casual employees, of home workers, of labour hire employees, and of those workers who are receiving remuneration as independent contractors and consultants.”1 1.2 Does the federal system promote access to justice for employers and workers pursuing their workplace rights? The Fair Work Act 2009 (Cth) (‘FW Act’) did not revert to the past constitutional guarantees of fairness (under the constitutional conciliation and arbitration power) and it relies on the corporations power to an even greater extent than WorkChoices. AIER believed at the time that the Fair Work Bill was passed, the government did not take up the opportunity presented to it to found a new system based on a new cooperative model: 1 McCallum R (2010), ‘Citizenship at Work: An Australian Perspective.’ (Sydney Law School Research Paper No. 11/17) Available at SSRN: http://ssrn.com/abstract=1769271 Australian Institute of Employment Rights Inc. PO Box 237, Seddon West, Victoria, 3011 Tel: +613 9647 9102 Fax: +613 9647 9199 Email: [email protected] www.aierights.com.au 4 © Australian Institute of Employment Rights Inc. 2010. This work is subject to copyright.